Cohen v. DIRECTV (Cal. Ct. App. - Oct. 28, 2009)

It's a class certification case. DIRECTV allegedly heavily advertised that the channels in its HD package "were in the . . . 1920x1080i standard and at 19.4 Mbps," but in an attempt to reduce bandwith racheted down to 6.6 Mbps and no longer met the 1920x1080i standard. So plaintiff brought a class action that alleged, inter alia, unfair competition. Which is all they could allege because, not surprisingly, there was nothing in the standard (DIRECTV-drafted) contract that obligated DIRECTV to do what it advertised.

You'd think this was a pretty straightforward class action. But the trial court denied the motion for class certification for lack of an ascertainable class (which the Court of Appeal correctly held wasn't the case) as well as failure to establish commonality. And Justice Bigelow's opinion says, yep, the claims aren't common enough for a class since there's no proof that everyone in the class relied on (or even saw) the advertising at issue, or even knows what the 1920x1080i standard is or what 19.4 Mbps means. (And DIRECTV helpfully submits affidavits from selected individuals in its tens of thousands of consumers that indeed prove that a lot of them are not very bright.)

What the Court of Appeal says is, of course, true. It's also true also for pretty much every single false advertising class action in the universe as well. You can never establish that everyone in a class of consumers saw or relied upon an advertisement. This apparently means that you can't have class actions involving such claims, since you'll never be able to establish commonality (and if you limit the class to only those who saw and relied upon such advertisements, you've now lost on ascertainability).

So apparently companies like DIRECTV entirely get off. Or, to put it more accurately, they take a hit from those one-in-a-million customers who bother to file a lawsuit for $39.95 or so, but it's totally worth it, since the savings are well-worth the expense. Why not, at this point, advertise "DIRECTV -- Super HD, In Three Dimensions, With Syrup and Free Chocolate Milk" despite the fact it's totally not true. You can't prove commonality there either, right? Because surely some customers didn't see the ad and/or don't like chocolate milk anyway.

I agree that causes of action that require reliance -- as most do -- create a problem of proof in class action cases. But I don't think that the solution is to simply refuse to certify the plethora of cases in which such allegations are made. The holding here seems to me to be wrong if only as a matter of policy (and since this is mostly common law stuff, that's saying a lot). It seems to me that for commonality, it's sufficient if there's proof -- perhaps from the nature and contents of the advertisement itself -- that much of the class would indeed have relied, at least in part, on the claims therein.

Now, does that exist here? Maybe, or maybe not. But it's too simplistic to say -- as Justice Bigelow does -- that there's no commonality because there's no proof that everyone saw or relied upon the particular practice at issue (or that reliance would be one issue among many that would have to be addressed at trial). Yep, that's an issue. But it shouldn't kill class actions. Especially in situations where a jury might rationally find reliance by viewing the advertisement itself, by using its common sense and experience as consumers, and by hearing from (say) thousands and thousands of potential witnesses that, yep, we indeed relied upon the thing and here's why it was important to us and others like us.

That seems to me class actions that we like. Especially when, as here, you're talking about small claims that we all know full well ain't gonna be litigated at all -- even if valid -- if you don't allow aggregation in a class setting.

Let the defendants move for summary judgment, or prove at trial that there probably wasn't widespread reliance. But don't boot the thing at the certification stage merely because it's surely the case that even if 99,000 relied upon Advertisement X, there are 1,000 others who didn't (and defendant has affidavits from 10 of the 1000).

So this one's unanimous. And now published. But I'd have at least been more nuanced, and may well perhaps have gone the other way.

P.S. - I feel a tiny bit bad about saying all this, since I don't think I've ever commented on an opinion by Justice Bigelow -- who was elevated only a little over a year ago -- and hate to start out this way. That said, I think what I think.